W.C. No. 4-396-744Industrial Claim Appeals Office.
March 8, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Corchado (ALJ) which awarded temporary disability benefits after June 25, 1999, the date an authorized treating physician placed the claimant at maximum medical improvement (MMI). We affirm.
The ALJ found the claimant suffered a compensable injury to his right arm on August 23, 1998, when he was kicked by a cow. The injury was treated by Dr. Green. In March 1999, the claimant reported symptoms consistent with depression. Dr. Green referred the claimant to Dr. Wood for a determination of MMI. Dr. Wood opined the claimant reached MMI on June 25, 1999, and referred the claimant to Dr. Leimbach for a medical impairment rating. Dr. Leimbach agreed with Dr. Wood’s determination of MMI and assigned a 17 percent upper extremity impairment rating. On September 22, 1999, Dr. Green agreed with Dr. Wood’s determination of MMI for the physical injury, but deferred to Dr. Ledezma concerning whether the claimant reached MMI from the depression. Dr. Ledezma opined the claimant was not at MMI as of September 1999.
The respondents filed a Final Admission of Liability which admitted liability for temporary disability benefits during October and November 1998, and permanent disability benefits commencing June 25, 1999.
The claimant applied for a hearing and requested additional temporary partial and temporary total disability benefits for lost wages in June, July and August 1999. The respondents denied liability on grounds the claimant reached MMI on June 25, 1999.
Crediting the opinions of Dr. Green, the ALJ found the industrial injury was the proximate cause of the claimant’s depression. Therefore, the ALJ found the claimant suffered a compensable psychological injury. Further, the ALJ found the claimant not at MMI for the psychological injury. Therefore, the ALJ granted the claim for temporary disability benefits.
Relying on City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997) (Ballinger), the respondents contend the ALJ erroneously awarded temporary partial and temporary total disability benefits because the claimant failed to prove the psychological injury caused any additional loss of temporary earning capacity than existed on June 25, 1999, when he reached MMI for the injury to his right upper extremity. We reject this argument.
It is well established that the claimant’s entitlement to temporary disability benefits terminates when the claimant reaches MMI. Section 8-42-105(3)(a), C.R.S. 2000; Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). MMI is defined by §8-40-201(11.5), C.R.S. 2000, as the point in time when:
“any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition.”
In Ballinger the court concluded that a worsening of condition after the claimant reaches MMI does not entitle a claimant to additional temporary total disability benefits unless the worsened condition causes a “greater impact” upon the claimant’s temporary work capacity than existed at the time of MMI. Ballinger involved a claimant who suffered a compensable back injury. The back injury precluded the claimant from performing his regular employment, and therefore, the claimant was awarded temporary total disability benefits. Four months after reaching MMI, the claimant suffered a shoulder injury while receiving treatment for the back injury. No additional medical restrictions were imposed as a result of the shoulder injury. Consequently, the Ballinger court concluded that the claimant failed to prove the shoulder injury caused an additional wage loss which would entitle him to further temporary disability benefits. Rather, the impairment of the claimant’s earning capacity remained permanent.
Here, the ALJ found the claimant’s psychological injury manifested prior to June 25, 1999, when the claimant was placed at MMI for the physical injury. Consequently, this claim does not involve a worsening of condition after MMI, and Ballinger is not controlling. For similar reasons, the respondents’ reliance upon our holdings in Bohte v. American Car Care Center of Grand Junction, W.C. No. 4-303-019 (December 14, 1998), and Stineman v. LaVilla Grande Care Center, W.C. No. 3-106-730 (December 14, 1998), is misplaced.
Furthermore, we have previously held that MMI is not divisible and cannot be parceled out among the various components of a multi-faceted industrial injury. Bernard v. Current, Inc., W.C. No. 4-213-664 (October 6, 1997); Carrillo v. Farmington PM Group, W.C. No. 3-111-178 (August 26, 1997); Powell v. L D Electric, W.C. No. 4-150-716 (March 21, 1997). The rationale for these decisions is that calculation of permanent disability benefits is contingent on the attainment of MMI. Thus, a gap in benefits could occur if the claimant’s temporary benefits were terminated but entitlement to permanent benefits cannot be determined since the claimant is not at MMI for all aspects of the injury. We adhere to our prior conclusions. Thus, where a single industrial injury has multiple components, the claimant’s entitlement to temporary disability benefits is not terminated by operation of § 8-42-105(3)(a) until the claimant has reached MMI for all components of the injury.
Under § 8-42-107(8)(b)(I), C.R.S. 2000, the initial determination of MMI is to be made by an authorized treating physician, and neither party may dispute the accuracy of the treating physician’s MMI determination in the absence of a Division-sponsored independent medical examination (DIME). Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996); Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). However, a physician has not determined MMI unless the physician opines tha all compensable components of the injury are stable. Furthermore, a DIME is not a prerequisite to the ALJ’s determination of whether an authorized treating physician has determined the claimant to be at MMI for all components of the injury. Blue Mesa Forest v. Lopez, supra.
Here, the record contains substantial medical evidence to support the ALJ’s determination that as of February 3, 2000, no authorized treating physician had placed the claimant at MMI for the psychological injury. Therefore, the June 25 determination of MMI for the physical injury did not preclude the ALJ from awarding additional temporary disability benefits.
Moreover, the record supports the ALJ’s determination that the claimant remained medically restricted from performing his regular work on June 25, 1999, and no modified employment was offered. Consequently, the ALJ did not err in awarding temporary disability benefits after June 25, 1999.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 10, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 8, 2001 to the following parties:
Placido Parra, 1129 Plum Ave., Brighton, CO 80601
Haake Farms, 12711 E. 160th Ave., Brighton, CO 80601-8225
Michelle deAngelo, California Indemnity Insurance Company, P. O. Box 6597, Englewood, CO 80155
Barbara J. Furutani, Esq., 1732 Race St., Denver, CO 80206 (For Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For Respondents)
BY: A. Pendroy